In cases where the purpose of returning originals cannot be achieved after the judgment of winning the lawsuit becomes final and conclusive due to the cancellation of fraudulent act and restoration to original state, whether there is a benefit in the protection of rights of the claim for compensation for value re- produced (negative)

Where a third party acquires a right, such as a mortgage or superficies, on an object after a fraudulent act, the creditor may seek compensation equivalent to the value against the beneficiary by means of restitution, barring special circumstances, such as that the beneficiary may transfer the object to its original state without any restriction on mortgage, etc. In such cases, the right to claim restitution shall be determined at the option of the creditor at the time of the conclusion of the arguments in fact-finding proceedings, as one of the original return and the equivalent compensation, and if the favorable judgment becomes final and conclusive by the creditor upon his/her claim for the return of the original object as a fraudulent act and restitution, even if the objective of return of the original object cannot be achieved for any reason thereafter, the right to claim restitution cannot be again claimed for compensation for value, and such claim is not allowed as there is no benefit in the protection of rights.

Articles 406(1) and 407 of the Civil Act; Article 216 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Seoul Guarantee Insurance Co., Ltd. (Attorneys Choi Han-chul et al., Counsel for the defendant-appellant)

Defendant

Seoul High Court Decision 2003Na81418 delivered on September 14, 2004

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. As to the ground of appeal on the primary claim

If a creditor’s revocation of a fraudulent act and a claim for restitution are acknowledged pursuant to Article 406(1) of the Civil Act, the beneficiary shall be obligated to return the object of the fraudulent act to the debtor as restitution, and if it is impossible or considerably difficult to return the original object, the beneficiary shall compensate for the equivalent amount of the value of the object of the fraudulent act as a performance of the duty to restore. Here, where the original object is impossible or considerably difficult to return means a case where the return of the original object is not simply absolute or physical impossible, but it is difficult to expect the realization of its performance in light of the social experience rules or the concept of transaction.

Therefore, barring special circumstances, such as that where a third party acquires a mortgage, superficies, etc. after a fraudulent act, the creditor may seek compensation equivalent to the value thereof against the beneficiary instead of returning the original property, but it does not allow the creditor to seek the return of the original property by taking risk or disadvantage on his/her own, and the creditor may seek the procedure for the registration of ownership transfer against the beneficiary instead of claiming the return of the original property by means of restitution. In such cases, the right to claim restitution shall be confirmed as one of the original return and the equivalent compensation, at the option of the creditor at the time of the closing of arguments in the fact-finding trial, and if the creditor becomes final and conclusive after the judgment becomes final and conclusive by claiming the return of the original property as a fraudulent act and restitution as a result of the revocation and restitution, even if the purpose of return of the original property cannot be achieved for any reason thereafter, the creditor cannot claim the return of the original property by exercising his/her right to claim restitution again, and such claim shall not be allowed as there is no benefit in the protection of rights.

In full view of the admitted evidence, the court below rejected the lawsuit of this case seeking value compensation on the ground that the defendant purchased the real estate in this case as a fraudulent act from the non-party who is the owner of the real estate in this case and completed the registration of ownership transfer in the future of the National Federation of National Federation of Fisheries after completing the registration of ownership transfer. After that, the plaintiff, a creditor of the non-party, filed a claim for revocation of fraudulent act and restitution to the non-party for the registration of ownership transfer against the non-party, and the judgment in favor of the plaintiff became final and conclusive, and the sale to the non-party was impossible due to the non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party's non-party

Cases cited in the grounds of appeal are inappropriate to be invoked in this case, unlike cases.

2. As to the ground of appeal on the conjunctive claim

After finding the facts as stated in its holding, the court below rejected the part of the conjunctive claim in this case for return of unjust enrichment on the ground that there is no evidence that the surplus against the defendant was actually paid to the defendant in the auction procedure for the real estate of this case, and that the National Federation of Fisheries Cooperatives did not incur losses to the plaintiff, and that the difference between the sale price of the auction procedure and the market price at the time of the closing of argument of this case also did not gain profit to the defendant. In light of the legal principles related to unjust enrichment, the court below is just and acceptable, and there is no violation of the legal principles as to the effect of revocation of fraudulent act and the claim for return of unjust enrichment, and there is no violation of the duty of explanation

The part of the conjunctive claim of this case seeking damages is not indicated in the petition of appeal and the appellate brief.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)